Clary v. Irvin

• Decision Date: 16 September 1980
• Docket Number: No. TY-80-198-CA.,TY-80-198-CA.
• Citation: 501 F. Supp. 706
• Court: U.S. District Court — Eastern District of Texas
• Parties: W. D. CLARY et al. v. L. D. IRVIN, Chief of Police of the City of Crockett, Texas et al.

501 F. Supp. 706

W. D. CLARY et al. v. L. D. IRVIN, Chief of Police of the City of Crockett, Texas et al.

No. TY-80-198-CA.

United States District Court, E. D. Texas, Tyler Division.

September 16, 1980.

Martha McCabe, Joe K. Crews, Tyler, Tex., for plaintiffs.

Charles H. Clark, Tyler, Tex., for defendants.

MEMORANDUM OPINION

JUSTICE, Chief Judge.

Crockett is a city of some 10,000 residents, the county seat of Houston County, in East Texas. As of June 1980, its Police Department numbered only nine officers, including the Chief of Police, L. D. Irvin, one patrol sergeant, one criminal investigator, and six patrolmen.

Around January of 1980, certain citizens of Crockett began questioning the adequacy of Chief Irvin's performance at the helm of the department, the subject having been later discussed at a number of City Council meetings in the first few months of 1980. Among those who took occasion to criticize the Chief were three Crockett policemen, Sergeant David Lamb, Investigator William Clary, and Patrolman James Saduske. At various times, singly and collectively, the three spoke informally with several City Council members about difficulties in the Police Department, mentioning equipment shortages, personnel policies, and what they considered to be Chief Irvin's mishandling of his duties.

On June 16, 1980, Chief Irvin learned from Elmer Murray, a City Councilman, of the conversations which had transpired between the three officers and Council members and of the criticisms the officers had put forward. Later that same day, he decided to dismiss the three from the police department. The named officers' employment was officially terminated on June 20, 1980. They have now filed suit in this court, claiming a violation of their rights under the First Amendment to the Constitution, and seeking relief in vindication thereof.¹

Two analytical steps are required to assess the merits of this lawsuit. The first is to identify what conduct on the part of the plaintiffs actually led to the dismissals. The second is to determine whether that activity is protected by the First Amendment. Constitutionally protected expressions may not form the basis for a dismissal, unless the employee would have been discharged even in their absence. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 478 (1977).²

In the first step of the analysis, Mt. Healthy dictates a test which looks toward the subjective intentions of the employer, not to the objective reasonableness of whatever additional grounds for discharge may exist. The Supreme Court's own language makes this clear, for in Mt. Healthy it is said that the employee must first prove that the expression played a "substantial" or "motivating" part in the termination decision; the burden then shifts to the employer to demonstrate "that it would have reached the same decision ... even in the absence of the protected conduct." 429 U.S. at 287, 97 S.Ct. at 576 (emphasis added). Similarly, in Givhan v. Western Line Consolidated School District, 439 U.S. 410, 417, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979), the Court noted that the test was whether the employee would have retained her position "but for" the protected speech.

The plaintiffs have clearly shown that their communications with City Council members were a motivating factor in the discharges. According to Chief Irvin's own testimony, he felt the three officers, by communicating with the City Council members, were seeking to undermine his authority and secure his dismissal. This, in his view, was reason enough to sever their employment with the city. In fact, it was shortly after his June 16 conversation with Councilman Elmer Murray that Chief Irvin made the determination to remove the plaintiffs from the ranks of the Crockett Police Department. On June 18, he met with the plaintiffs to inform them of his decision, unequivocally stating that their series of talks with City Council members was the main reason for the dismissals.

The defendants have advanced supplementary justifications for the discharges, attempting to fulfill their subsequent burden of proving that the plaintiffs would have been fired even in the absence of their conversations with the City Council members. However, none of the additional explanations and rationalizations appear to have played any real part in the Chief's actions. First, when Chief Irvin informed the plaintiffs of his decision to terminate them, he also mentioned certain complaints from citizens about their performance as policemen. On that occasion, he hinted that the complaints formed a part of the basis for the firings. Nonetheless, Chief Irvin had known of the complaints for some time, and had never seen fit to dismiss or discipline any of the three officers concerning matters encompassed in the citizens' grievances, until he learned of their conversations with the City Councilmen. Indeed, the accusations of the citizens notwithstanding, the Chief had occasionally complimented officers Lamb and Clary on their job performance and, at one time or another, had declared that each of the three plaintiffs might be promoted in rank. In his testimony, moreover, Chief Irvin expressed the opinion that all three plaintiffs were capable of good police work.

Additionally, some testimony in evidence indicated that a few members of the general public may have overheard the plaintiffs' criticisms of Chief Irvin. While there is nothing in the record that suggests frequent airing of the plaintiffs' complaints to the general public, the defendants have made much of the allegation that these three officers pilloried the Chief of Police in front of the community. Even if the evidence supported such a proposition-and it does not appear to have done so-it is unlikely that Chief Irvin was motivated by any of plaintiffs' communications with the public at large when he terminated their employment.³ He did not mention these utterances to the plaintiffs in notifying them of their discharge, nor did he make reference to the criticisms in his trial testimony.

Finally, the defendants presented evidence to the effect that the plaintiffs criticized Chief Irvin in the presence of other officers on the force, and that this reprobation may have generated an atmosphere of tension and a decline in general efficiency within the department. However, the Chief did not allude to any of these matters when he informed the plaintiffs of their dismissals, specifying only the communications to members of the Council and the complaints of citizens.⁴ Similarly, in his trial testimony, the Chief did not delineate the plaintiffs' communications with other members of the force as one of the factors which prompted him to terminate the three.⁵

It appears, then, that the plaintiffs would not have been dismissed from their employment, except for their communications with members of the Crockett City Council. This leads to the second step of the analysis to be performed: whether the communications themselves are protected by the First Amendment.⁶

The Constitution's guarantee of freedom of speech in many ways symbolizes its inherent proposition that public officials are not entitled to blind, uncritical adherence. The opportunity for the People freely to speak and criticize those in positions of governmental power lay near the hearts of the framers of the Constitution. This opportunity is not necessarily withheld from governmental employees; the Supreme Court has held that the mere fact that strictures may be directed toward a supervisor by a subordinate public employee does not eliminate the First Amendment's protection of the critical speech. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).⁷ Thus it is that public employees, including the plaintiffs in this case, possess the same interests that any citizen would have in commenting on matters of public concern-here, the performance of a public official, the Chief of Police. Id., 391 U.S. at 568, 88 S.Ct. at 1734.

But there is an additional interest to be considered: that of the plaintiffs, as peace officers and members of the Crockett Police Department, in communicating their disquietudes and professional concerns about its chief official to those possessed of the power to remedy the disturbing matters.⁸ As providers of a public service, the officers had the prerogative, even the duty, to comment on the quality of that service when trying to improve it. This interest received recognition in Givhan v. Western Line Consolidated School District, 439 U.S. at 415-416, 99 S.Ct. at 696-697, where the Supreme Court acknowledged a public employee's right to communicate privately with superiors about matters relating to the public institution for which the employee works. Similarly, in Pickering, the Court, invalidating the dismissal of a teacher for publicly criticizing the school district's expenditures of education funds, noted that teachers had peculiar knowledge and expertise in the spending of school monies. "Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal." 391 U.S. at 572, 88 S.Ct. at 1736. The United States District Court for the District of Rhode Island outlined the same First Amendment interest: "Is it too much to recognize ... that members of a profession have, as a matter of conscience, commitments to standards and philosophies of practice; and that, at least without clear agency rules to the contrary, they may not be disciplined for expressing the dictates of their professional conscience?" Pilkington v. Bevilacqua, 439 F.Supp. 465, 479 n. 11 (D.R.I.1977), aff'd 590 F.2d 386 (1st Cir. 1979).

Of course, the plaintiffs, as police officers, have no legally cognizable interest in recklessly or knowingly spreading false and defamatory allegations about the Chief of Police. Pickering, 391 U.S. at 574, 88 S.Ct. at 1737. Here,...